ALJDEC decisions subject to certification as final

10F-0233W-ROC · Registrar of Contractors · 2010-01-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 29, 2009 APPEARANCES: Roger Buttrum appeared on behalf of Complainant R B Building Systems, L.L.C. Respondent Sanctuary Design, L.L.C. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Sanctuary Design, L.L.C. (“Sanctuary”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: Procedural Background On November 2, 2009, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing in this matter would convene on December 29, 2009 at 1:00 p.m. On December 1, 2009, Complainant R B Building Systems, L.L.C. (“RB”) filed with the Office of Administrative Hearings a Request to Reschedule Hearing. Sanctuary did not file a response thereto. On December 11, 2009, the Office of Administrative Hearings issued to the parties an Order Denying Continuance, advising the parties that the matter remained scheduled for December 29, 2009 at 1:00 p.m. On the date and at the time scheduled for the hearing, Roger Buttrum appeared on behalf of RB. No one appeared on behalf of Sanctuary. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Sanctuary, or the receipt of any information that would constitute good cause for its absence or delay. No such information was received. Therefore, the hearing proceeded in Sanctuary’s absence. FINDINGS OF FACT Sanctuary is the holder of a Class B-01 license (No. 246046), a Class B-02 license (No. 240988), and a Class B- license (No. 156309) issued by the Registrar of Contractors (“ROC”).[1] Sanctuary contracted with RB for RB to perform the electrical, plumbing, mechanical, and drywall work for fourteen various commercial tenant improvement projects for which Sanctuary was the general contractor.

Mr. Buttrum, RB’s manager, credibly testified at hearing that between April 2009 and July 2009, RB performed its work pursuant to the parties’ respective contracts. Mr. Buttrum testified as to the specific projects as follows: i. RB performed the electrical and ceiling grid work for the Upland Group project and completed such work in April 2009. The contract price was $6,159.00. Sanctuary continues to owe RB the contract balance of $3,594.00; ii. RB performed the mechanical, plumbing, and electrical work for the Arizona Institute of Spine & Sports Care project, and completed such work in July 2009. The contract price was $55,219.57. Sanctuary continues to owe RB the contract balance of $27,206.61; iii. RB performed the electrical, mechanical, metal framing, drywall, and finish work for the Hunt Real Estate project and completed such work in April 2009. The contract price was $23,344.95. Sanctuary continues to owe RB the contract balance of $2,399.51; iv. RB performed the mechanical, electrical, metal framing, drywall, and finish work for the Premier Eyecare of Arizona project and completed such work in May 2009. The contract price was $7,020.00. Sanctuary continues to owe RB the contract balance of $2,743.60; v. RB performed the mechanical, electrical, plumbing, metal framing, drywall, and finish work for the Geno’s Giant Slice project and completed such work in June 2009. The contract price was $38,549.55. Sanctuary continues to owe RB the contract balance of $19,062.55; vi. RB performed the mechanical, electrical, plumbing, audio, camera, HDTV system, security system, and structured wiring work for the Dunkin Donuts Tempe project and completed such work in July 2009. The contract price was $71,173.50. Sanctuary continues to owe RB the full contract price of $71,173.50; vii. RB performed the mechanical, electrical, plumbing, security and CCTV, metal framing, drywall, and finish work for the Advanced Pediatrics project and completed such work in June 2009. The contract price was $67,233.50. Sanctuary continues to owe RB the full contract price of $67,233.50; viii. RB performed the electrical, metal framing, structured wiring, drywall, and finish work for the Yogurt Jungle project and completed such work in July 2009. The contract price was $32,488.00. Sanctuary continues to owe RB the full contract price of $32,488.00; ix. RB performed the metal framing, structured wiring, drywall, and finish work for the Exclusive Salon & Day Spa project and completed such work in June 2009. The contract price was $32,322.12. Sanctuary continues to owe RB the contract balance of $29,415.12; x. RB performed the mechanical, electrical, plumbing, paint, ceiling grid, and drywall framing work for the Office Space Today project and completed such work in July 2009. The contract price was $118,914.00. Sanctuary continues to owe RB the full contract price of $118,914.00; xi. RB performed the electrical, structured wiring, and security work for the Dunkin Donuts Scottsdale project and completed such work in July 2009. The contract price was $34,367.00. Sanctuary continues to owe RB the full contract price of $34,367.00; xii. RB performed plumbing maintenance work for the Dunkin Donuts at Tatum and Bell in June 2009. The contract price was $523.58. Sanctuary continues to owe RB the full contract price of $523.58; xiii. RB performed the electrical and plumbing work for the La Estancia Nursing and Rehabilitation project and completed such work in June 2009. The contract price was $28,500.00. Sanctuary continues to owe RB the full contract price of $28,500.00; and xiv. RB performed the plumbing work for the Prime Clinic project and completed such work in July 2009. The contract price was $16,854.86. Sanctuary continues to owe RB the contract balance of $1,224.05; On July 17, 2009, RB filed a complaint against Sanctuary with the ROC, alleging that Sanctuary has failed to pay RB for the services RB performed on the fourteen construction projects, in the total amount of $442,171.19. The Administrative Law Judge finds, based on the weight of the evidence of record, that the sum of $438,845.02 is the proper balance due and owing to RB from Sanctuary for the work performed by RB on the fourteen construction projects. Notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. CONCLUSIONS OF LAW 1. In this proceeding, Sanctuary is subject to discipline for violations of A.R.S. § 32-1154(A)(7) and/or (A)(11) as charged by the ROC in its September 24, 2009 Citation and Complaint. See Arizona Administrative Code R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The Administrative Law Judge concludes that RB met its burden of proof as to both of the ROC’s charges. 4. Under A.R.S. § 32-1154(A)(11), a contractor is subject to discipline for the “failure . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered . . .” The instant record demonstrates that Sanctuary failed to pay, when due, the sum of $438,845.02 to RB. Accordingly, under all of the facts and circumstances presented herein, Sanctuary’s conduct is found to constitute a violation of A.R.S. § 32-1154(A)(11). 5. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, from the evidence presented, that Sanctuary committed wrongful acts that substantially injured RB by failing to pay for all of the work performed by RB on the fourteen projects. Therefore, Sanctuary violated A.R.S. § 32-1154(A)(7). 6. Based upon the above violations of the provisions of A.R.S. § 32- 1154(A), grounds exist to impose discipline against Sanctuary’s licenses. 7. Upon consideration of all of the facts and circumstances presented by this case, including Sanctuary’s failure to appear for hearing and its suspended license status, the Administrative Law Judge concludes that Sanctuary’s Class B-01, Class B-02, and Class B- licenses should be revoked. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Sanctuary’s Class B-01 license (No. 246046), Class B-02 license (No. 240988), and Class B- license (No. 156309) shall be revoked. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, January 5, 2010.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A review of the ROC’s official records revealed the following: Sanctuary’s Class B-01 license number 246046 was suspended on November 27, 2009, for lack of bond; Sanctuary’s Class B-02 license number 240988 was suspended on January 2, 2010, for lack of bond; and Sanctuary’s Class B- license number 156309 was suspended on January 2, 2010, for lack of bond. Such suspended license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826